Second bite at the cherry

Second bite at the cherry

By Charl Theron and Roxanne Ker

Bezuidenhout v the Master and Others, a decision of the High Court, Johannesburg, on 16 March 2017, dealt with a long divorced spouse wanting more from the deceased estate of her erstwhile spouse.

Bezuidenhout was the sole heir of the deceased. The “Master” is an official of the High Court whose duties include regulating the administration of deceased estates. The “Others” were the executor of the deceased estate, the divorced spouse, and the Registrar of Deeds.

The deceased and the divorced spouse married in 1988, in community of property. They soon bought an immovable property, which was registered in both of their names. They conducted an acrimonious divorce that culminated in 1998 in a settlement agreement that was made an order of Court. In the agreement, they agreed who would get what assets, including in respect of investments and the deceased’s pension. The last clause in the settlement agreement recorded that the deceased will retain all other assets including his tools.

However, the settlement agreement contained no mention of the immovable property. After the divorce, the deceased occupied the property (to the exclusion of his erstwhile spouse) and paid all expenses relating to the property, until his death in 2013. However, in the records of the Registrar of Deeds, the property remained registered in both of their names.

Only when the executor submitted the final liquidation and distribution account in 2015, allocating the immovable property to Bezuidenhout (the sole heir), did the divorced spouse come to light by objecting to the account, and claiming that she remained a 50% owner of the property, so only 50% of the property ought to be included in the account. The Master upheld the objection, and Bezuidenhout took the decision by the Master on review to the High Court.

The main question to answer was whether, or not, “all other assets” in the settlement agreement included the immovable property. Bezuidenhout could provide no useful evidence, and she had not known the deceased prior to 1996. The divorced spouse averred that she and the deceased had an oral agreement that he would be entitled to occupy the property, and the division of their respective interests in the property would only take place if the property was sold or on the death of either of them. The Judge described her version as “implausible in the extreme“; and held that:

– “all other assets” included the property; and

– when the settlement agreement was made an order of Court (in 1998), full ownership of the property immediately vested in the deceased, and registration of transfer of the divorced spouse’s 50% share was not a requisite for such vesting.

The Court Order set aside the Master’s decision, authorised the executor to implement the final liquidation and distribution, and directed the Registrar of Deeds to give effect to the Court Order.

Note that our system of deeds registration is a negative one where the deeds registry does not necessarily reflect the true state of affairs. What is recorded in the Deeds Office is usually correct in law, but there is no guarantee.

Had the divorcing parties been better advised, the immovable property would have been dealt with in the settlement agreement, and the deeds registry would have been updated promptly.